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DICKERSON v. FATEHI (59894)


SHIRLEY DICKERSON
v.
NASROLLAH FATEHI, M.D., ET AL.


April 18, 1997
Record No. 961531

SHIRLEY DICKERSON
v.
NASROLLAH FATEHI, M.D., ET AL.

Thomas V. Forehand, Judge
Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Koontz, JJ., and Whiting, Senior Justice
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE


In this medical malpractice action, the trial court, relying
solely upon the pleadings and certain pretrial discovery
material, granted summary judgment in favor of a physician and
two nurses. The court ruled, inter alia, that
expert testimony was necessary to establish the appropriate
standards of care and breaches thereof, and the principal issue
in this appeal is whether that ruling was erroneous.

Shirley Dickerson filed this action against Nasrollah Fatehi,
M.D., a neurosurgeon, and his professional entity, Atlantic
Neurosurgery, P.C. (collectively, Fatehi), and against Rachel
Jacobs, R.N., and Millicent P. Spruill, ORT.[1] Dickerson alleged
that, on February 27, 1989, she was admitted to Chesapeake
General Hospital for neck surgery to be performed by Fatehi. The
next day, Fatehi, assisted by Jacobs, the circulating nurse, and
by Spruill, the surgical technician who acted as the scrub nurse,
performed an anterior cervical diskectomy.

Dickerson further alleged that, during the course of the
surgery, Fatehi "used a blunt tip 18 gauge hypodermic
needle, including [a] plastic attachment to the syringe, as a
metallic marker [which] . . . was intended to be
removed prior to closure of the operative site." Fatehi,
however, negligently "failed to remove [the] hypodermic
needle" from Dickerson’s neck at the close of surgery, and
Jacobs and Spruill, in violation of their duty of care,
negligently failed "to maintain a proper needle count
. . . [to] ensure the removal of the needle" after
surgery.

Following the surgery, Dickerson allegedly experienced
"severe pain . . . [in] her right arm, hand and
neck." Fatehi referred her to Dr. Edward Habeeb, an
orthopedic surgeon. Habeeb ordered x-rays of Dickerson’s neck and
shoulder, but was unable to determine the cause of her pain. He
referred her to Fatehi for therapy.

Approximately 20 months after the surgery, Dr. Thomas Queen, a
general surgeon, discovered and removed the needle, including the
plastic attachment to the syringe, from Dickerson’s neck.
Dickerson alleged that the negligence of Fatehi, Jacobs, and
Spruill (collectively, the Defendants) was a proximate cause of
her injuries.

Responding to the Defendants’ pretrial discovery requests that
Dickerson identify the expert witnesses she expected to call at
trial, Dickerson named only a psychiatrist/neurologist and a
radiologist. Dickerson had not named any other expert witnesses
when the court-ordered discovery cut-off date arrived.

The Defendants moved for summary judgment on the ground that
the two experts named by Dickerson were not qualified to testify
on the appropriate standards of care.[2] The trial court
agreed and granted summary judgment in favor of the Defendants.
At the same time, the trial court rejected Dickerson’s contention
that the doctrine of res ipsa loquitur
applied. The court reasoned that Dickerson’s pleadings and
"the undisputed facts" showed that the needle marker
"was not in the exclusive control of any one
defendant."

Dickerson contends, on appeal as she did in the trial court,
that, based upon the facts shown by her pleadings and the
Defendants’ admissions, expert testimony is not necessary to
establish the appropriate standards of care and breaches thereof.
Dickerson asserts that "whether a reasonably prudent
neurosurgeon . . . should account for and remove a
hypodermic needle from a patient’s body before closing the
operative wound is within the range of common experience of a
jury." Similarly, Dickerson also asserts that "whether
a reasonably prudent circulating nurse and scrub nurse
. . . [made] and report[ed] an accurate account of all
needles . . . used during the surgical procedure
. . . [also is a matter] within the common knowledge
and experience of a jury."

In almost all medical malpractice cases, expert testimony is
necessary to assist a jury in determining a health care
provider’s appropriate standard of care and whether there has
been a deviation from that standard. Raines v. Lutz,
231 Va. 110, 113, 341 S.E.2d 194, 196 (1986); Bly v. Rhoads,
216 Va. 645, 653, 222 S.E.2d 783, 789 (1976). In certain rare
cases, however, when the alleged negligent acts or omissions
clearly lie within the range of a jury’s common knowledge and
experience, expert testimony is unnecessary. Beverly
Enterprises
v. Nichols, 247 Va. 264, 267, 441 S.E.2d
1, 3 (1994); accord Jefferson Hospital, Inc. v. Van
Lear
, 186 Va. 74, 41 S.E.2d 441 (1947).

In considering a motion for summary judgment, a court must
adopt those inferences from the facts that are most favorable to
the nonmoving party, unless the inferences are forced, strained,
or contrary to reason. Carson v. LeBlanc, 245 Va.
135, 139-40, 427 S.E.2d 189, 192 (1993). "Summary judgment
shall not be entered if any material fact is genuinely in
dispute." Rule 3:18.

This case did not go to trial; consequently, the record on
appeal is quite limited. In addition to Dickerson’s pleadings,
the record discloses that Fatehi’s attorney conceded in argument
before the trial court that "anybody . . . without
regard to any medical training would be able to say that unless
the object left in the patient has some therapeutic value, you
don’t leave a foreign object in the body."

Furthermore, Dickerson submitted the following request for
admission to Fatehi:

15. Admit that it was your responsibility as surgeon to remove
after surgery the 18 gauge blunt tip hypodermic needle placed in
. . . Dickerson’s neck during anterior cervical
diskectomy surgery . . . .

Fatehi responded as follows:

15. Denied. It was the obligation of Dr. Fatehi to remove the
needle, as he did, prior to the removal of the disk. The request
implies the needle was to be removed only after the surgery was
performed. Dr. Fatehi relies on the counts of the hospital’s OR
Technician and circulating nurse at the end of the operation and
prior to closing the wound, which counts indicated all
needles were accounted for and none was in the surgical wound
site and he believed that the counts necessarily included the
needle.

In the present case, based upon the record before us, we are of
opinion that, if the facts alleged and admitted by Fatehi were
presented to a jury, the jurors, absent expert testimony,
reasonably could determine, by calling upon their common
knowledge and experience, whether Fatehi was negligent and
whether his negligence was a proximate cause of Dickerson’s
injuries. Therefore, the trial court erred in ruling that expert
testimony was necessary to establish the standard of care.
With respect to Jacobs and Spruill, we conclude that the record
has not been developed sufficiently to enable either the trial
court or this Court to determine that the alleged negligence does
not lie within a jury’s common knowledge and experience so that
expert testimony is necessary. Therefore, the trial court acted
prematurely in entering summary judgment in favor of Jacobs and
Spruill. Likewise, the record has not been developed sufficiently
to enable either the trial court or this Court to determine
whether the doctrine of res ipsa loquitur is
applicable. See Easterling v. Walton, 208
Va. 214, 216-17, 156 S.E.2d 787, 789-90 (1967) (doctrine applies
where means or instrumentality causing injury is in exclusive
possession and control of person charged with negligence).

Accordingly, we will reverse the trial court’s judgment and
remand the case for further proceedings consistent with this
opinion.[3]

Reversed and remanded.

FOOTNOTES:

[1] Dickerson
also filed this action against Chesapeake General Hospital. In a
separate action which was consolidated with this suit, Dickerson
sued Edward Habeeb, M.D., and his professional entity,
Orthopaedic Surgeons, Ltd. (collectively, Habeeb). On Dickerson’s
motion, however, Habeeb and the Hospital were nonsuited.

[2] The
Defendants relied upon Code ‘ 8.01-581.20 regarding the requisite
knowledge, skill, and experience that a proffered witness must
have in order to qualify as an expert witness on the appropriate
standard of care. Code ‘ 8.01-581.20, however, does not require a
plaintiff to present expert testimony in all medical malpractice
actions, Beverly Enterprises v. Nichols, 247 Va.
264, 269, 441 S.E.2d 1, 4 (1994), and, given our decision in the
present case, we do not reach the question whether the proffered
witnesses were qualified to testify as experts on the standard of
care.

[3]We need not
consider whether the trial court abused its discretion in
refusing to permit Dickerson to supplement her discovery answers
by naming additional expert witnesses because the case will be
remanded for further proceedings. Upon remand, the court should
establish a new date for the completion of discovery, and,
therefore, the issue is moot.

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